Whitner v. Cartledge
ORDER RULING ON REPORT AND RECOMMENDATION 15 . Accordingly, theReport and Recommendation of the Magistrate Judge is adopted and incorporated by reference. Defendants motion for summary judgment is granted, and this matter is dismissed with prejudice. A certificate of appealability is denied. Signed by Honorable Cameron McGowan Currie on 3/21/2017. (kric, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Samuel Lamont Whitner,
C/A. No. 8:16-1392-CMC-JDA
Opinion and Order
Warden Larry Cartledge,
This matter is before the court on Petitioner’s pro se application for writ of habeas
corpus, filed in this court pursuant to 28 U.S.C. § 2254. ECF No. 1. Respondent filed a motion
for summary judgment, as well as a return and memorandum of law on August 15, 2016. ECF
Nos. 15, 16. A Roseboro Order was mailed to Petitioner on August 16, 2016, advising Petitioner
of the importance of a dispositive motion and the need for Petitioner to file an adequate response.
ECF No. 17. After two extensions of time to respond, Petitioner filed a response in opposition
on December 1, 2016. ECF No. 26. Respondent filed a reply on December 7, 2016. ECF No.
In accordance with 28 U.S.C. § 636(b) and Local Civil Rule 73.02 (B)(2)(d), DSC, this
matter was referred to United States Magistrate Judge Jacquelyn D. Austin for pre-trial
proceedings and a Report and Recommendation (“Report”).
On January 30, 2017, the
Magistrate Judge issued a Report recommending that Respondent’s motion for summary
judgment be granted. ECF No. 29. The Magistrate Judge advised Petitioner of the procedures
and requirements for filing objections to the Report and the serious consequences if he failed to
do so. Petitioner has received two extensions of time to file objections to the Report. Petitioner
has not filed objections to the Report, and his time to do so has passed.
The Magistrate Judge makes only a recommendation to this court. The recommendation
has no presumptive weight, and the responsibility to make a final determination remains with the
court. See Matthews v. Weber, 423 U.S. 261 (1976). The court is charged with making a de
novo determination of any portion of the Report of the Magistrate Judge to which a specific
objection is made.
The court may accept, reject, or modify, in whole or in part, the
recommendation made by the Magistrate Judge or recommit the matter to the Magistrate Judge
with instructions. See 28 U.S.C. § 636(b). The court reviews the Report only for clear error in
the absence of an objection. See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310,
315 (4th Cir. 2005) (stating that “in the absence of a timely filed objection, a district court need
not conduct a de novo review, but instead must only satisfy itself that there is no clear error on
the face of the record in order to accept the recommendation.”) (citation omitted).
After reviewing the entire record, the applicable law, and the Report and
Recommendation of the Magistrate Judge, the court finds no clear error. Accordingly, the
Report and Recommendation of the Magistrate Judge is adopted and incorporated by reference.
Defendant’s motion for summary judgment is granted, and this matter is dismissed with
IT IS SO ORDERED.
s/ Cameron McGowan Currie
CAMERON MCGOWAN CURRIE
Senior United States District Judge
Columbia, South Carolina
March 21, 2017
CERTIFICATE OF APPEALABILITY
The governing law provides that:
(c)(2) A certificate of appealability may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.
(c)(3) The certificate of appealability . . . shall indicate which specific issue or issues
satisfy the showing required by paragraph (2).
28 U.S.C. § 2253(c). A prisoner satisfies this standard by demonstrating that reasonable jurists
would find this court’s assessment of his constitutional claims is debatable or wrong and that any
dispositive procedural ruling by the district court is likewise debatable. See Miller-El v. Cockrell,
537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d
676, 683 (4th Cir. 2001). In this case, the legal standard for the issuance of a certificate of
appealability has not been met. Therefore, a certificate of appealability is denied.
IT IS SO ORDERED.
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